Justice Scalia of the U.S. Supreme Court was in Troy this past weekend to receive an honorary degree from Rensselaer Polytechnic Institute, an award inevitably protested by some students and faculty, and to participate in an annual colloquy with other honorees. This year's topic was "Honoring Tradition, Responding to a Changing World." As an "originalist" among jurists, Scalia is an interesting person to invite to such a discussion, and I imagine he did not disappoint expectations. RPI's website put up this excerpt from his remarks.
On this occasion, Scalia's understanding of the Constitution is less "originalist" than "strict constructionist." The opposite of strict construction is just as much an "originalist" position as Scalia's, since it was the position of Alexander Hamilton, who was more or less the co-author of the Constitution with the strict-constructionist James Madison. As David J. Bodenhamer writes in his new book The Revolutionary Constitution, Hamilton understood the Constitution as a "grant of power" while Jefferson, reflecting Madison's viewpoint and anticipating Scalia's, saw it as a "restraint on power." Obviously the Constitution is both; it grants power and limits it, the limits being most obvious in the Bill of Rights and subsequent amendments. The common-sense position on Constitutional questions should recognize that legislation is unconstitutional if it violates rights defined in the Constitution itself. Strict constructionism goes further, deeming laws unconstitutional not only if they violate defined rights, but also if the powers assumed in the legislation are not explicitly spelled out in the founding charter. The opposite position, from Hamilton to the present day, is more inferential, more inclined to give legislators the benefit of the doubt so long as they don't violate enshrined rights. That position may seem less intellectually rigorous than strict constructionism but the real difference is in the fundamental presumption about government. Strict constructionists from Madison to Scalia interpret the Constitution to mean "this much and no more" until it's amended, while the other side doesn't take the "no more" part for granted. The strict constructionists never say that the other side can't have its way, but insist that under certain circumstances they can't have their way until they amend the Constitution. Because of the amendment process, Scalia is wrong when he says that the people can dictate that some things may never change. But it's also wrong to say that he intends that some things should never change. The real issue between the rival constructions is when it should be necessary to go to the by-definition radical step of amending the Constitution. The opponents of strict construction don't recognize the necessity as often as their rivals. For whatever reason, the "loose" or "liberal" constructionists assume government to have more inherent power than strict constructionists do. Is that assumption based on the Constitution itself or on more fundamental assumptions about government and its obligations? The same question can be asked of strict constructionists, and especially of those, like Scalia, who sometimes fall back on pre-constitutional notions of natural rights. Ideally we would draw our conclusions depending only on the Constitution itself, but if we disagree on the very meaning of government our readings of the Constitution itself will inevitably differ. If the Constitution itself was meant as a vehicle for reconciling conflicting attitudes toward government in the abstract, it's possible to argue that in that sense, at least, it has failed.